The article--which was a team effort involving me, David "Shining a Light" Hoffman, Danieli "I'll Have Another" Evans, Donald "Shotgun" Braman & Jeff "Bear Claw" Rachlinski--features an experiment that tests the impact of cultural cognition on perceptions of facts relevant to the line between "speech" and "conduct" under the First Amendment.
Experiment subjects were assigned to play the role of jurors in a case in which protesters are suing the police for breaking up the protestors' demonstration. The police, subjects were told, claim the protestors were threatening onlookers and blocking their access to a building. The protestors say they were just engaged in impassioned advocacy.
The parties agree that the key piece of evidence is a video of the protest. The subjects are instructed to watch the video and then report what they saw and determine whether it counts as "threatening," "intimidating" or "blocking" under a specified law.
The experimental manipulation involved the supposed nature of the protest. Half the subjects were told that the protestors are demonstrating against abortion rights in front of an abortion clinic. The other half were told that the protestors are objecting to the military's then-existing "Don't ask, don't tell" policy outside a college campus recruitment center.
Consistent with our hypotheses, we found that what subjects saw depended on whether the position the protestors were represented to be taking was congenial or hostile to the subjects' own cultural outlooks. Thus, egalitarian individualists disagree with hierarchical communitarians who are in the same experimental condition (either "abortion clinic" or "military recruitment center") but disagree with other egaligatarian individualists who are in the opposing experimental condition.
The disagreement, moreover, is over facts--like whether the protestors "screamed in the face" of pedestrians and blocked them from entering the clnic/recruitment center.
This is a problem for the First Amendment, which tries to impose an obligation of state neutrality by confining regulation of putative expression to harms that can be defined independently of any negative reaction people might have toward the speaker's ideas. People have a hard time applying this rule, we find, because they are unconsciously motivated to see these sorts of "noncommunicative harms" -- like threats, intimidation, blocking -- when behavior conveys an idea that offends their values.
The study was patterned on a classic 1950s study in social psychology entitled "They Saw a Game." In it, researchers found that students from two Ivy League colleges were more likely to see the penalty calls of a referee as correct or incorrect depending on whether the rule violation was being attributed to their college's football team or its opponent. This was probably the first experimental demonstration of "motivated reasoning."
The most fun part of doing the study was making the movie. We tried really hard but couldn't find any stock footage of demonstrations that could plausibly be described as either an abortion protest or a military recruitment center protest. People who engage in one tend to look very different from the other.
Fortunately (for us), members of the infamous Westboro Church came to town (Cambridge, Massachusetts, in the winter of 2009). When they show up to preach hate against gays and lesbians, so do massive numbers of counterdemonstrators.
We managed to cull quite a number of useable scenes from 90 minutes of footage, and were able to confirm in a pretest (of judges and lawyers!) that viewers would believe whichever of the stories we told them about what the demonstration was about, and where it occurred.
Then in an even greater stroke of luck, the U.S. Supreme Court granted review in a case in which the parents of a soldier at whose funeral the Church members demonstrated were awarded $5 million in damages. The Court overturned the verdict on the ground the distress of the emotional distress of the parents was a noncognizable "communicative harm" under the First Amendment.
We were able to kick out a timely study result showing that if a state now passes a law prohibiting groups like the Westboro Church from "intimidating" funderal attendees, the jury's factual determinations will likely be unconsciously guided by the very sorts of things the Court said were not proper bases for damages in the Westboro case. Oh well!
Actually, our point is that it's not enough (maybe not even of any use) to have a doctrine that seems great as a matter of political philosophy if that doctrine imposes psychologically unrealistic demands on decisonmakers.
Constitutional law needs a dose of psychological realism.